Federal judge orders Indiana absentee ballots must be counted if postmarked by Election Day
INDIANAPOLIS (WISH) — A federal judge on Tuesday ruled that all Indiana absentee ballots postmarked by Election Day and received on or before Nov. 13 must be counted, citing the unprecedented number of mail-in ballots cast in Indiana’s June primary and the possibility of voters’ ballots not being counted “based largely on factors outside their control,” including the coronavirus pandemic and documented delays within the U.S. Postal Service.
Indiana code says that mail-in absentee ballots must be received by noon on Election Day, Nov. 3, to be counted. Mail-in ballots from overseas voters can be received any time before noon Nov. 13, as long as the ballot is postmarked on or before Nov. 3.
The Indiana Election Commission expanded eligibility to vote by mail in the rescheduled June 2 primary to include any “voter who is unable to complete their ballot because they are temporarily unable to physically touch or be in safe proximity to another person” but did not extend that for the general election, the ruling says. The expanded eligibility was to curb the spread of the coronavirus pandemic.
Circuit court clerks in each Indiana county must prepare a certified, final statement of the number of votes received for each candidate and submit them to the Indiana Election Division no later than noon on the second Monday following Election Day. This year, that is Nov. 16.
Judge Sarah Evans Barker of the Southern District of Indiana said in the ruling that the expansion of mail-in absentee voting eligibility for the Indiana primary led to an unprecedented number of voters casting mail-in ballots, nearly 550,000. That led to “documented delays in the transmission of ballots to voters as well as from voters back to election officials,” the judge said. And those delays meant “thousands of otherwise valid ballots were rejected,” the ruling said.
The ruling gives as examples 1,949 Primary Election mail-in ballots in Marion and Hamilton counties that were postmarked on or before Election Day but rejected for not arriving by noon on that day.
“Plaintiffs have presented evidence, which Defendants have not materially challenged, that this surge in mail-in absentee voting, coupled with delays and disruptions in USPS mail delivery, resulted in well-documented delays in the primary election, both in the delivery of blank absentee mail-in ballots to voters and the return of completed ballots to election officials, and it is likely to result in similar delays in the November 3, 2020 general election,” the ruling says.
Barker said the evidence from the Primary Election suggests thousands of Indiana voters in the general election would be at risk of their votes not being counted “based on factors largely outside their control.”
While the secretary of state argued that Indiana offers alternatives of voting on Election Day or turning in a mail-in ballot, all the alternatives require a voter to appear in person, the ruling said: “Appearing in person is an option not available to many absentee voters, who may be disabled, seriously ill, homebound, out of the state, or remaining sequestered at home to avoid COVID-19’s devastation.”
“Election Day is set by law as November 3 — all day on November 3 until the polls officially close. Any voter casting a ballot has the right to do so within that time frame. The noon Election Day receipt deadline disadvantages — indeed, disenfranchises — voters who vote by mail-in ballot by cutting short the time period within which they are permitted to exercise this right even though, due to the COVID-19 pandemic, ensuring the timely delivery of their ballots is outside their control. To do so without a sufficiently weighty state interest constitutes an undue burden on the fundamental right to vote in violation of the First and Fourteenth Amendments,” Barker said in the ruling.
A federal judge ruled Monday that absentee ballots in battleground Wisconsin can be counted up to six days after the Nov. 3 presidential election as long as they are postmarked by Election Day.
To vote absentee-by-mail in Indiana, a voter must be able to personally mark their own ballot and sign their name to the completed ballot security envelope and have a reason to request an absentee vote-by-mail ballot:
- You have a specific, reasonable expectation that you will be absent from the county on Election Day during the entire 12 hours that the polls are open (6 am until 6 pm).
- You have a disability.
- You are at least 65 years of age.
- You will have official election duties outside of your voting precinct.
- You are scheduled to work at your regular place of employment during the entire 12 hours that the polls are open.
- You will be confined due to illness or injury or you will be caring for an individual confined due to illness or injury during the entire 12 hours that the polls are open.
- You are prevented from voting because of a religious discipline or religious holiday during the entire 12 hours that the polls are open.
- You are a participant in the state’s address confidentiality program.
- You are a member of the military or a public safety officer.
- You are a “serious sex offender” as defined in Indiana Code 35-42-4-14(a).
- You are prevented from voting due to the unavailability of transportation to the polls.